Felon Fallout

A couple of years ago, the state of California did something surprising. It changed the name of its Department of Corrections, tacking on the words "...

A couple of years ago, the state of California did something surprising. It changed the name of its Department of Corrections, tacking on the words "and Rehabilitation" to the agency's title. It was a small step -- the modification wasn't accompanied by any sudden surge in funding for rehabilitation programs. But it was symbolically important nonetheless. Thirty years ago, the state officially recast the department's mission from rehabilitation to incarceration and punishment. Since then, the idea of rehabilitating prisoners has been a much lower priority than locking up more of them. Now, with the state's prisons bursting at the bars, that may be about to change.

California's prison system houses more than 170,000 inmates, roughly double the number it was designed to hold. Overcrowding has precipitated riots and viral outbreaks, as well as straining basic services such as water and sewer. A federal judge has given state lawmakers until June to come up with a feasible solution for handling the heavy volume or risk a court takeover of the entire system. Two other courts are also entertaining motions to put a cap on the prison population. And, in response to yet another case, a federal court has already taken control of the prison health care system, ordering changes that could cost the state as much as $1 billion. The California prison system was undeniably facing a crisis anyway, but pressure from the courts has made prison management and reform one of the most pressing issues in Sacramento this year.

"We are at the point where if we don't clean up the mess, the federal court is going to do the job for us," said Governor Arnold Schwarzenegger. He has asked lawmakers to approve an $11 billion package in response. Most of the money would go toward building more prison and jail capacity. But Schwarzenegger also aims to make good on the promise of rehabilitation suggested by the corrections agency's name change. He wants nearly double the present funding for vocational, educational and drug treatment programs.

In looking to change its approach on corrections, California is just starting to play catch-up with the rest of the country. While no one wants to be accused of being "soft" on crime, fiscal concerns in many states have helped to revive liberal notions that had been abandoned for decades. In the aggregate, state governments are now spending more than $40 billion per year on prisons -- five times as much as during the mid-1980s. Corrections departments have become the largest public employers in many states. A few are even spending more on corrections than on higher education. As a result, the ground underlying the corrections debate has clearly shifted. Nearly every state has stepped up its efforts to prepare prisoners for release, hoping that at least some of them will gain the skills and attitude necessary to avoid coming back.

Granted, the word "rehabilitation" is still too charged to return to broad use. The new buzzword is "reentry," a term that tacitly acknowledges that the vast majority of inmates will return to their communities at some point. The problem is that most of them will end up behind bars again, if not for new crimes then for parole violations. In California, seven out of 10 released prisoners are re-incarcerated within three years. That's one of the worst rates in the nation. But most states recognize that if they can cut their recidivism rates by just a small fraction, they will save enormous amounts of money.

Since 2004, for example, Connecticut has been putting more money into reentry programs such as parole, housing and drug treatment. Apparently as a result, the state has seen its prison population decline after a worrisome spike upwards. Connecticut was able to avoid building more prison space, and less crowding meant the cancellation of its multimillion-dollar contract with Virginia to house 500 prisoners it previously had no room for. "Around the country, it's becoming politically safe to do this stuff," says Michael Lawlor, chair of the Connecticut House Judiciary Committee, "because there's something in it for everybody, social progressives and fiscal conservatives."

Of course, not everyone has come around to this way of thinking. The idea that has dominated state corrections policy for more than a decade -- that it is better to lock up offenders than waste energy worrying about how they're treated while they're in prison -- still has enormous political resonance. And although more policy makers are becoming convinced of the need for offering prisoners some choices other than staring at a wall, the notion of investing in felons for the purposes of rehabilitation still doesn't sit well with the public at large.

In California, voters have strongly indicated their continued desire for a get-tough approach. Last November, they approved one of the harshest sex-offender laws in the country -- which, among other things, will put thousands more behind bars. That came on the heels of voter rejection of an attempt to soften the state's "Three Strikes" law, which puts habitual offenders away for decades or for life. "Republicans generally feel we should build more prisons," says Dick Ackerman, the party's leader in the state Senate. "The California taxpayer wants to put these people away."

The Roots of Overcrowding

Like most of the rest of the country, California has spent the past quarter-century on a prison-building spree. The state's prison population has increased eightfold during those years, so that despite nearly tripling the number of its prisons since 1980, the corrections department has just about run out of room. It predicts the system will reach its absolute capacity in June or July, which is just about the time a federal judge might take over the system.

The roots of overcrowding are clear. Beginning in 1976, California's legislature and voters began approving a slew of tougher sentencing laws -- some 1,000 altogether, culminating with the 1994 passage of Three Strikes. Although virtually all the laws lengthened sentences, the penal code as a whole has become a hodgepodge. It's easy to sketch out scenarios under which a criminal may face any one of four or five different mandatory sentences -- each carrying a different penalty -- for the exact same crime.

The one thing that has become certain for virtually all prisoners, however, is the date of release. Determinant sentencing has stripped the corrections department of its former authority to make judgments about when and whether a prisoner is ready to be released. Rather than getting time off for good behavior, or shortening their sentences by completing drug treatment programs, prisoners know they will be released on a fixed day, even if they have been dangerous enough to be kept in solitary until the day of their release. "We have more stringent requirements for young people graduating high schools than we do for people being released from prison," says state Senator Mike Machado.

If prisoners have no incentive for participating in rehab programs, there aren't adequate programs available to them anyway. For instance, more than half the state's prisoners are in "high need" of drug treatment, but only about 9 percent of them are likely to be enrolled at any given time, according to the UC Irvine study. Such programs are traditionally understaffed and poorly financed, but overcrowding has meant there's literally no place for them. The state prisons have classrooms and gymnasiums, but many are filled with some of the 19,000 inmates who are sleeping not in cells but in double or triple bunks lined up in every available space. "The accusations that we became just a warehouse are true," says James Tilton, Schwarzenegger's corrections secretary.

Release and Return

Under Schwarzenegger's plan, counties would house more short-term prisoners and help them get access to community-based programs. His proposal includes $5.5 billion for local jails, but counties remain nervous that the state will pass too many costs and responsibilities onto them. According to the sheriff's association in the state, more than 200,000 prisoners at the county level failed in 2005 to serve any or all of their sentences because 20 county jails are under court-ordered population caps, with 12 more maintaining voluntary caps under court pressure. Tilton, undaunted, has been working to convince counties and local law enforcement officials that local programs provide an alternative to the unworkable revolving-door recidivism system currently in place. "My presentation is that, if you want the status quo, if you want an inmate who is not prepared to be in your community, then to be honest you can have that if you like."

With so many of the state's prisoners either functionally illiterate or addicted to drugs (or having a combination of both problems), it's hardly surprising that so many of them return to prison after a brief stint on the outside. In Kansas, says state Representative Pat Colloton, two-thirds of prison admissions are related to parole and probation violations, and 80 percent of these are due to substance abuse or mental illness. In many cases, people are going to prison for violating probation, even though they weren't sentenced to jail time for their original crime.

If their crimes weren't severe enough to warrant a prison sentence in the first place, the state doesn't want them occupying expensive beds or distracting parole officers from more dangerous offenders. Toward that end, Kansas ran a pilot program in Shawnee County that sought to coordinate housing, substance abuse, job training and other programs for parolees. It cut the usual parole-revocation rate from 80 percent to 30 percent. Colloton has introduced twin bills that aim to build on this success by offering grants to more counties. "By giving this support, we can substantially reduce the number of people coming back to jail," she says. "We think that reforming people is the way to go, rather than building more prison beds."

Colloton, a Republican, is not some '60s liberal. Her proposal, like so many among the new generation of rehab programs, would be funded with strings attached. Accountability, after all, has become another universal buzzword. In order to continue to receive funding under Colloton's legislation, a county in Kansas will have to show that it has cut its revocation rate by at least 20 percent. In Oregon, the legislature has imposed a statutory requirement on the corrections department to monitor the success rate of reentry programs. In Washington State, a legislative study found that spending $1,000 per inmate for academic and vocational training programs was a good deal, crediting such programs with savings of more than $10,000 per prisoner in the form of lower crime rates and drops in recidivism of up to 9 percent.

Because the early results look good -- and there's suddenly grant money and research available from sources such as the U.S. Department of Justice and the Council of State Governments' new Justice Center -- more states are willing to look hard at funding reentry programs as an alternative to spending far more on prison beds. Even in tough-on-crime Texas, which leads the nation not only in executions but also its per capita rate of incarceration, lawmakers are talking seriously about the need to increase programming in prisons and in communities to address illiteracy, drug addiction and other stumbling blocks common to prisoners and parolees. "We're trying to do the smart thing," says Jerry Madden, chairman of the House Committee on Corrections. "The answer is not just building more prisons."

Lack of Political Will

Governor Schwarzenegger has talked seriously about making major changes to California's corrections system throughout the course of his administration. But, according to his critics, whenever push has come to shove, he's stopped pushing. Not long after taking office, Schwarzenegger appointed a prison study commission, headed by former Governor George Deukmejian, and called for an overhaul of the state's overtaxed parole system. So confident was his administration of success with its parole changes -- it promised savings of $75 million per year -- that it suspended operations at the correctional officer training academy, anticipating the need for fewer officers. But neither the implementation of parole changes nor the savings ever came off.

The lack of new trained officers is just one reason why the corrections department is understaffed by about 4,000 employees. California had one of the nation's lowest guard-to-inmate ratios anyway, but the closure of the training academy has meant hefty overtime payments to those on duty; 6,000 department employees, mostly rank-and-file guards, earned six figures during the past fiscal year. Indeed, the average base salary for prison guards there is 50 percent above the national average.

The guards' main union, the California Correctional Peace Officers Association, has become one of the most powerful forces in Sacramento. It was the leading donor to Schwarzenegger's two immediate predecessors. Schwarzenegger has openly derided the union as a "special interest," sought to cut its power by changing its means of collecting political dues from members, and attempted to shut the union out from prison policy discussions for the first time in years.

The CCPOA also didn't like the fact that he suspended its members' promised pay raises during a tough budget year, or that he tried to revoke some of the managerial control over its members that the union had won from his predecessor, which allows CCPOA to determine which officers will get which jobs 70 percent of the time. After Schwarzenegger unveiled his parole plan, the union helped a victims' rights group air TV ads claiming that the plan would let murderers, rapists and child molesters roam the streets.

Last year, two corrections secretaries quit in the space of a couple of months, later testifying in court that the governor's top political aides had decided to cave in to union demands. The courts grew publicly concerned about the administration's "retreat" from prison reform, with a special master complaining about CCPOA's "disturbing" amount of clout.

But if the union is sometimes cast in the role of villain in California's ongoing prison policy drama, there is plenty of blame left for others. Schwarzenegger called a special session last summer to address the overcrowding issue, asking the legislature to approve $6 billion for prison construction. The Senate passed a heavily revised version of the governor's plan, but the Assembly balked. Legislators claimed they needed more time to address such a complex issue, but the fact that the special session was a failure -- coupled with the fact that the Democrats who control the legislature have shown more interest in Schwarzenegger's proposed sentencing commission than his latest construction money request -- has led Republicans to level the familiar charge that they are soft on crime and criminals.

Schwarzenegger was seeking changes to the state's sentencing structure even before the U.S. Supreme Court ruled in January that major portions of it are unconstitutional. His fellow Republicans in the legislature claim that a sentencing commission, which would aim to straighten out some of the many inconsistencies in California's penal code, is "code for early release." Sentencing commissions, which have been tried in about 20 states, have not all been successful, but neither have they universally called for shorter sentences.

In North Carolina and Virginia, commonly cited as models in California, sentences for violent crimes were significantly lengthened, although both commissions diverted funds to community-based rehab and reentry programs. But Republican legislators in California are convinced that Democrats mean to use any new sentencing commission as cover for cutting jail time. "My biggest fear is that the liberals are going to drive an agenda where they will give the governor sentencing reform," says Assembly Republican Todd Spitzer, "and will not give any additional resources for prison beds, claiming that sentencing reform is enough to solve the problem."

Chance of a Lifetime

The stop-and-start nature of California's prison debate over the past couple of years has bred plenty of cynicism. But most observers think that the threat of a court takeover will succeed in prodding the political players into finally addressing the problem. Schwarzenegger has gotten nowhere with his earlier prison reform efforts because the political stakes were too high. Now, the dynamic has changed and the penalty for inaction may have become greater than for agreement. No one wants to be blamed when a court orders the release of thousands of convicts or watch the same court freely spend billions of additional dollars from state coffers. The Department of Corrections and Rehabilitation's budget has soared 52 percent over the past five years and is set to exceed $10 billion this year. Those numbers are scary enough without risking the prospect of a court receiver backing up a truck to the state treasury. "We don't need the federal government coming in here and writing blank checks out of our general fund," says Mike Villines, leader of the Assembly Republicans.

Villines, Spitzer and other Republicans clearly mean to keep banging the "tough on crime" gong in order to pressure Schwarzenegger and Democratic legislative leaders. They may or may not succeed in their goals of keeping a sentencing commission's authority limited and prison construction spending high. But even they talk about the need for the state to do a better job with rehabilitation programs in order to cut costly recidivism. The guards' union, for its part, also has embraced the need for rehabilitation programs and publicly stated that sentencing reform is going to happen in California, whether through the legislative process or via court edict.

The debate in California is just beginning, but it's clear that reconciling all the complex and politically touchy issues surrounding sentencing, parole, rehabilitation and, in all likelihood, new prison construction will be tremendously difficult. (To make things even more complicated, the guards' contract is up for renegotiation.) Yet it's quite possible that the state, having let its prison problems grow literally out of its control, will finally take a comprehensive look at solving them.

"Sometimes a crisis will drive decisions, and we are certainly in a crisis situation," says Tilton, the corrections secretary. "This really presents an opportunity that hasn't been around for the 30 years I've been in state government to work through the issues about who should be in prison versus who should be somewhere else."